Calcutta High Court (Appellete Side)
All India Trinamool Congress vs Election Commission Of India & Ors on 30 April, 2026
ADSL 1
30.04.2026
Court. No. 25
Suvayan/
S. Gayen/
Sourav
WPA 10488 of 2026
All India Trinamool Congress
Vs.
Election Commission of India & Ors.
Mr. Kalyan Bandhopadhyay, Sr. Adv.
Mr. Dhruv Chadha
Mr. Shivam Pathak
...for the petitioner.
Mr. Dama Seshadri Naidu, Sr. Adv.
Mr. Abhinav Thakur
Mr. Pradeep Kumar
Mr. Kumar Utsov
Mr. Ghanshyam Pandey
...for the respondent no. 1.
Mr. Jishnu Chowdhury, Sr. Adv.
Ms. Anamika Pandey
Ms. Sanskriti Agarwal
Ms. Rishika Pandey
…for the respondent no. 2 & 3.
1. The petitioner has filed the present writ application
challenging the communication dated April 30, 2026
issued by the Additional Chief Electoral Officer, West
Bengal only with regard to Clause no. 1 wherein it is
mentioned that “at least one among the counting
supervisor and counting assistant at each counting table
shall be a Central Government/Central PSU employee”.
2. Mr. Kalyan Bandhopadhyay, learned Senior Advocate
appearing for the petitioner submits that the Additional
Chief Electoral Officer, West Bengal had issued the
impugned communication without any jurisdiction. He
further submits that the said communication is issued
only on the apprehension. He has relied upon the
Handbook for the counting agent Section A, Clause 1.13
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wherein the following persons can be allowed inside the
counting hall:
i) Counting supervisors, counting assistants and
micro observers;
ii) Persons authorized by the ECI (possessing
authority letter duly issued by ECI) and
observers;
iii) Public servants on duty in connection with the
election; and
iv) Candidates, their election agents and counting
agents.
3. By referring the said provision, Mr. Bandhopadhyay
submits that the said provision does not allow that the
counting supervisors or counting assistants shall be the
Central Government/Central PSU employees. He further
relied upon Clause 9.11 and submits that as per the said
provision apart from one counting supervisor and one
micro observer for each table, one micro observer would
be seated in each of the 14 counting tables. The micro
observer will invariably be a Central
Government/Central Government PSU employee but in
the present case the respondents/authorities have
appointed counting supervisors and counting assistants
as Central Government/Central Government PSU
employee instead of micro observer.
4. Mr. Badhopadhyay, further submits that on May 4, 2026
the Election Commission of India has fixed the counting
of votes of State Assembly Election of Assam, Kerala,
Puducherry as well as in the State of West Bengal but the
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other places the Election Commission has not appointed
any Central Government or Central PSU employees as
counting supervisors or counting assistants but only in
the State of West Bengal the ECI has appointed the
counting supervisors and counting assistants from
Central Government/Central PSU employees.
5. Mr. Bandhopadhyay, further relied upon Article 324(2)
of the Constitution of India and submits that as per the
said Article, the Election Commission shall consist of
Chief Election Commission and such number of other
Election Commissioners if any as the precedent may time
to time fix an appoint the Chief Election Commissioner
or other Election Commissioner subject to the provisions
of any law made by that behalf by the Parliament, be
made by the President. But in the present case, the
impugned order is being issued by the Chief Electoral
Officer, West Bengal who is not coming under the
purview of Section 324 of the Constitution of India.
6. Mr. Bandopadhyay in support of his submission relied
upon the judgment in the case of Union Territory of
Ladakh & Ors. vs. Jammu & Kashmir National
Conference reported in (2024) 18 SCC 643 and
submits that in election matters to the extent that one a
notification is issued and the election process start,
Constitutional Courts, under normal circumstances are
loath to interfere, is not a contentious issue. But where
issues crops up, indicating unjust executive action or an
attempt to disturb a level-playing field between
candidates and/or political parties with no justifiable or
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intelligible basis, the Constitutional Courts are required
and they are duty-bound, to step in. He further relied
upon the unreported judgment passed by the Hon’ble
Division Bench of this Court in the case of Md.
Daanish Farooqui vs. Election Commission of
India & Ors. passed in WPA(P) 192 of 2026 dated
April 22, 2026 and submits that in the said case, the
Election Commission of India and its subordinates have
passed an order observing that the names mentioned in
the list are actively involved in intimidating voters and
creating disturbances in the electoral process in the
respective assembly constituencies/ police station areas
indicating against their names but the Hon’ble Division
Bench has stayed the portion of the said order in the
above matter.
7. Mr. Chowdhury, learned Senior Advocate appearing for
the Additional Chief Electoral Officer submits that the
petitioner has filed the present application only on
apprehension. The petitioner has not disclosed any
document or produced any evidence to establish that if
the Central Government/Central PSU employees are
appointed as a counting supervisors/counting assistants,
the petitioner will be prejudiced in any way. He further
submits that the petitioner has filed the present writ
application without any legal basis. He further submits
that if the averments made in the writ petition, is read as
whole it reveals that the petitioner intending to say that
the Election Commissioner has directed the Central
Government/Central PSU employee to commit the
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illegality in the electoral process which is beyond the
imagination. He submits that the Additional Chief
Electoral Officer, West Bengal had issued the said
communication only for the purpose of ensuring,
transparency, integrity and orderly conduct of counting
proceedings. He relied upon Article 329 of the
Constitution of India and submits that no election either
the House of Parliament or the House of Legislature of
the State can be called in question except by an election
petition but the petitioner has filed the present writ
application which is not maintainable as the election
process is still going on.
8. He further relied upon the judgment in the case of
A.K.M. Hassan Uzzaman & Ors. vs. Union of
India & Ors. reported in (1982) 2 SCC 218 and
submits that the Court must observe a self-imposition
limitation on their power to act under Article 226 of the
Constitution of India by refusing to pass orders or to give
direction which will inevitably result in an indefinite
postponement of elections to the legislative bodies which
are very essence of the democratic foundation and
functions of our Constitution.
9. Mr. Naidu, learned senior advocate appearing for the
Election Commission of India submits that the similar
issue raised by Arka Kumar Nag before the Hon’ble
Division Bench of this Court in WPA (P) 141 of 2026
and the Hon’ble Division Bench has dismissed the public
interest litigation by holding that the petitioner has
raised eyebrow because sizable number of officers were
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transferred by ECI. In view of the aforesaid pleadings,
where 25 existence of power of ECI to transfer/shift
officers is admitted, we are not inclined to conduct any
roving enquiry and analysis to examine whether the ECI
otherwise had any such power or not.
10. He further submits that by challenging the said order a
special leave petition was filed before the Hon’ble
Supreme Court being SLP (C) No. 12775 of 2026 and
the Hon’ble Supreme Court has dismissed the special
leave petition but the Hon’ble Supreme Court has held
that the question of law is kept open. He submits that as
the Hon’ble Supreme Court has kept the question law
open and thus this Court cannot again decide the said
issue, which is to be decided by the Hon’ble Supreme
Court.
11. In support of his submission, he has relied upon the
judgment in the case of Union of India vs. Kanwaljit
Deol & Anr. reported in 2024 SCC OnLine 805 and
submits that the Hon’ble Division Bench of the Delhi
High Court held that when the Supreme Court records
that the question law is kept open, undoubtedly it is
meant to be considered in future by the Supreme Court
only.
12. Mr. Naidu referred Section 19(A) of the Representation
of the People Act, 1951 and submits that in the said
section there is a provision of delegation of function of
the ECI. It cannot be said that the impugned
communication made by the Additional Chief Electoral
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Officer, West Bengal has passed the order without any
jurisdiction. He further relied upon the provision of
Section 20A and 20B of the said Act and submits that
there is a provision of delegation. Under such, the ECI
has invoked the said provision and allowed the
Additional Chief Electoral Officer to issue the impugned
communication.
13. Mr. Naidu has relied upon Section 100 of the
Representation of the People Act, 1951 and submits that
as per Clause (iv) by any non-compliance with the
provisions of the Constitution or of this Act or of any
rules or orders made under this Act, shall be the ground
for declaration of election to be void in an election
petitioner not by way of writ petition. He further
submits that the impugned order has been issued on
April 13, 2026 but the petitioner has filed the present
writ application on April 30, 2026 having the knowledge
that the counting is fixed on May 4, 2026 and May 1,
2026 to May 3, 2026 there are holidays. The intention of
the petitioner to file the present writ application is only
with the intention to stall the counting on May 4, 2026.
He further submits that the petitioner had the knowledge
with regard to the impugned communication as the same
is in public domain but instead of challenging the said
order earlier has challenged the said order in the present
writ application at the last stage when the counting is
fixed on May 4, 2026.
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14. Heard the learned counsel for the respective parties.
Perused the materials on record and the judgments
relied by the parties.
15. The only question in the present writ application
whether the impugned notification dated April 13, 2026
wherein the Additional Chief Electoral Officer has
informed that one amongst the counting supervisor and
counting assistant at each table shall be the Central
Government/Central PSU employee. The hand book for
counting agent provides for counting supervisor,
counting assistant and the micro observer but the same
has not provided whether it is of the Central
Government/Central PSU employee or the State
Government employee.
16. Clause 15.7.9 of the hand book of returning officer reads
as follows:-
“Counting staff appointments should be made in
the form given in Annexure 35. Counting
supervisors should preferably be Gazetted
Officers (Group B or above), Counting Assistants
should also be Group B or at least Group C
officials of the Central or State Government or
officers of comparable status from Central or
State Government undertakings.”
17. In the writ petition, the petitioner has made an allegation
that the main opponent of the petitioner is the Bharatiya
Janata Party (BJP) and admittedly runs and controls the
Central Government and as such, he is having an
apprehension that if Central Government/Central PSU
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employees are appointed as counting supervisors or
counting assistants, they would be directly under the
control of Central Government and are likely to be
susceptible to the suggestions and control of persons in
the BJP.
18. As per the impugned letter dated April 13, 2026, the
Additional Chief Electoral Officer, West Bengal intending
that the counting supervisors and counting assistants
shall be the Central Government/Central PSU employees
for the purpose of ensuring transparency, integrity and
orderly conduct of counting proceedings. It is also
admitted that all the counting stations, there are CCTV
and the counting is to be done with the surveillance of
CCTV. As per Clause 9.41 of the Handbook for counting
agent apart from the counting supervisor and micro
observer for each counting table, one micro observer
would be seated in each of the counting table and the
micro observer will be invariably the Central
Government or Central PSU employee.
19. The petitioner has not challenged with regard to
appointment of the micro observer who will be the
Central Government/Central PSU employee wherein as
per Clause 9.11, it is categorically provided that the micro
observer will be seated in each of the 14 counting tables
and micro observer will note down the details of votes
exhibited by the EVMs being counted in each round in
the table.
20. Thus, this Court is of the view that the allegation made
by the petitioner that the main opponent of the
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petitioner is the BJP and Central Government/Central
PSU employee who directed under control of the Central
Government and likely to be susceptible to the
suggestion and control of the persons in the BJP cannot
be said to be correct. Only the counting supervisor and
the counting assistants will not be in the counting room.
Micro observers, counting agents of the candidates who
are contesting the election and counting personnel will
also be in the counting room. Thus, it is impossible to
believe the allegation made by the petitioner.
21. As regards the jurisdiction of the Chief Electoral Officer,
West Bengal for issuance of the impugned
communication, Section 19A of the Representation of the
People Act, 1950 provides that the functions of the
Election commission under the Constitution, the
Representation of the People Act, 1950 and this Act or
under the rules made thereunder may, subject to such
general or special directions, if any, as may be given by
the Election Commission in this behalf, be performed
also by a Deputy Election Commissioner or by the
Secretary to the Election Commission. Section 20A of the
said Act provides the General Duties of District Election
Officer wherein it provides that subject to the
superintendence, direction and control of the Chief
Electoral Officer, the District Election Officer shall co-
ordinate and supervise all work in the district or in the
area within his jurisdiction in connection with the
conduct of all elections to Parliament and the Legislature
of the State.
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22. Considering the above, this Court finds that Section 19A
of the Act of 1951 provides the delegation of the functions
of the Election Commission and as such, it cannot be said
that the Additional Chief Electoral Officer is not having
the jurisdiction to issue such order.
23. As regards the maintainability of the present writ
application, this Court finds that several orders have
been passed by the authorities of the Election
Commission of India during the election process and
said orders have been challenged before this Court in
WPA (P) 141 of 2026 wherein the Hon’ble Division
Bench of this Court has dismissed the writ application
and the petitioner of the said writ application has
challenged the same before the Hon’ble Supreme Court
by way of Special Leave Petition and the said SLP was
also dismissed but the Hon’ble Supreme Court has kept
the question of law open. Once the Hon’ble Supreme
Court has kept the question of law open, this Court
cannot adjudicate the same. It is only the Hon’ble
Supreme Court whenever the occasion arises, the
Hon’ble Supreme Court will decide the same.
24. In the case of Kanwaljit Deol & Anr. (supra), the
Hon’ble Division Bench of the Delhi High Court has held
that when a question of law is kept open by the Hon’ble
Supreme Court not entertaining the SLP against the
judgment of the High Court, in fact, what is done is
neither to confer not to dilute the ratio of the judgment
under challenge. That, however, does not mean the High
Court in future case is allowed to take a fresh view
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ignoring the law of precedence. It only means the
Hon’ble Supreme Court refuses to bind itself of put it seal
on the ratio propounded by the High Court in the
judgment under challenge. Therefore, when an identical
question comes up before the same High Court and is
presented for consideration before a Bench of co-
ordinate strength by virtue of the principle of law of
precedence, the Bench would be bound by the ratio of the
earlier judgment of the High Court unless preceded to
refer to the Larger Bench.
25. Clause 15.7.9 provides that counting staff appointments
should be made in the form given in Annexure 35.
Counting supervisors should preferably be Gazetted
Officers (Group B or above), Counting Assistants should
also be Group B or at least Group C officials of the
Central or State Government or officers of comparable
status from Central or State Government undertakings.
In the present case, the respondent authorities have
decided to appoint the counting supervisor and counting
assistants from the Central Government/Central PSU
employee. This is the prerogative of the authorities to
either to appoint from the Central Government or the
State Government, in the present case, the authorities
have taken a decision for appointment of counting
supervisor or counting assistant from the Central
Government/Central PSU employee.
26. It is the prerogative of the office of the Election
Commission of India to appoint the counting supervisor
and counting assistant either from the State Government
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or the Central Government. This Court does not find any
illegality for appointing counting supervisor and
counting assistant from the Central Government/Central
PSU employee instead of State Government employee.
27. It is true, the petitioner has challenged the impugned
order wherein the Additional Chief Electoral Officer has
appointed the counting supervisor and counting
assistants from the Central Government/Central PSU
employees though an executive order but this is the
continuation of the election process. The allegation of the
petitioner is that the main opponent of the petitioner is
the BJP which admittedly runs and controls the Central
Government and there is every chance that the Central
Government/Central PSU employees who directly under
the control of the Central Government and are likely to
be susceptible to suggestion and control of the persons in
the BJP. If the petitioner proves that the Central
Government/Central PSU employees appointed as
counting supervisor and counting assistants, helped the
opponent of the petitioner by manipulating votes while
counting the same, the petitioner has the liberty to take
all the points in the election petition.
28. Section 100 of the Representation of the People Act
provides that by any non-compliance with the provisions
of the Constitution of this Act or of any rules or orders
made under this Act shall be grounds for declaring
election to be void and thus, if the petitioner finds that
during the counting, the Central Government employees
who have been appointed as counting supervisor and
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counting assistants or favoured the candidate of the BJP
due to which the candidate of the petitioner defeated, the
petitioner has the liberty to challenge the same in an
election petition.
29. In view of the above, this Court does not find any merit
in the present writ application.
30. Accordingly, WPA 10488 of 2026 is dismissed.
31. Urgent photostat certified copies of this order, if applied
for, be supplied to the parties upon compliance with all
the necessary formalities.
(Krishna Rao, J.)